Appellate Success Secured on Behalf of Retail Client
By: Carter Conboy
Carter Conboy obtained a favorable decision from the Appellate Division, Third Department which affirmed the lower Court’s Decision and Order dismissing the plaintiff’s Complaint in a trip and fall case against our retail client.
In this personal injury action, the plaintiff alleged that he suffered a fractured hip as a result of tripping and falling due to an alleged chipped tile in the front vestibule of the defendant’s grocery store. Carter Conboy successfully moved for summary judgment and the plaintiff appealed the decision.
The Appellate Division, Third Department held that the defendant established prima facie entitlement to judgment by demonstrating that the small depression of approximately one-quarter inch depth in the tile was a trivial defect as a matter of law. In opposition, the plaintiff's expert affidavit of an architect was based on assumptions, unsupported by evidentiary facts, and the Court found that his opinion was speculative and could not be relied upon. The Court noted that the expert did not inspect the scene or have any actual measurements, and he acknowledged that an inspection would be necessary to confirm his assumptions. As such, the defendant was properly entitled to summary judgment dismissing the Complaint.